8. Retaliation against Whistleblowers is OK

The Tribunal did not rule of my claim of retaliation as the reason for not extending my contract. However, the first fact of the case that the Tribunal mentioned to be considered in the judgment was “The complainant impugns the Director-General’s decision to reject his complaint of harassment and retaliation”. The Tribunal tried to avoid retaliation as the real reason for not extending my contract because it related to corruption and money laundering by the defendant organization.

The Tribunal did not take into account the solid evidence and the appellant committee’s findings and recommendations on retaliation which was the reason for not extending my contract. Instead, the Tribunal depended completely on the defendant organization’s simulated scenario that included a fabricated reason for not extending my contract.

The Tribunal stated:

· “the Tribunal has repeatedly held that the decision not to renew a contract is a discretionary one reviewable only on limited grounds”.

· “a high degree of deference ought to be accorded to an organisation’s exercise of its discretion regarding decisions concerning probationary matters including the confirmation of appointment, the extension of a probationary term, and the identification of its own interests and requirements”.

· “It is established case law of the Tribunal that ‘the reason for probation is to enable an organisation to assess the probationer’s suitability for a position reason for probation is to enable an organisation to assess the probationer’s suitability for a position’” and “And ‘where the reason for refusal of confirmation is unsatisfactory performance, the Tribunal will not replace the organisation’s assessment with its own’”.

· “The FAO’s case is that the complainant’s appointment was not extended because of performance issues”

These statements could be valid only if the decision of not extending my contract was taken by the defendant organization. But, the decision of not extending my contract was taken by governmental officers. Here the evidence that was not taken into account by the Tribunal.

· Article 45 of the report of the investigation panel on harassment stated “Respondent #1 states that FAO office in Riyadh was not involved in the decision not to renew the contract of the Complainant, that instead the decision came from the Ministry, specially the Deputy Minister for Research and Agricultural Development. Respondent #1 wrote to the technical officer at headquarters on 17 May 2008 stating that “the ministry has decided not to renew [] the contract of Mr El Obeidy, CTA” (emphasis added). Respondent #1 testified that he tried to convince the NPD to allow the contract to be extended for six months but this was denied. Respondent #1 also states that he asked the ADG/RNE to contact the Deputy Minister to extend the contract of the Complainant at least until a suitable replacement could be found but this also was denied. On 7 September 2008 the ADG/RNE told the Operations officer in RNE (a retired staff member) that the Ministry of Agriculture of KSA had confirmed that they did not agree with extension of Complainant beyond his NTE date”

It seems that the Tribunal misconstrued the circumstances of not extending my contract. The Tribunal thought that the decision of not extending my contract was taken by the defendant organization.

The statements by the Tribunal could be valid only if the decision of not extending my contract was taken by the defendant organization, but not when it was taken by governmental officers. Except if the Tribunal wanted to replace the UN organization with governmental officers.

Discretion on extending my contract should be of the defendant organization, but not of governmental officers. Performance issues as a reason for not extending my contract is null and void because the decision of not extending my contract was taken by governmental officers, but not by defendant organization. In addition, there was no any type of assessment of my performance. The Tribunal itself stated “The Tribunal observes, however, that there is nothing that indicates that the complainant was properly supervised or that there was any performance appraisal of his work”. Besides, the Tribunal did not take into account that the investigation panel on harassment stated “Both the operations officer and the headquarter technical officer thought it premature not to renew [my] contract. Both of them indicated in witting and in their interviews with panel that from a technical prospective, there was nothing wrong with [my] actions or how his project was running. Both of these officers tried to get [my] contract extended to the end of December 2008 but as noted, this was not successful”. The Tribunal did not take into account the Article 47 in the report of the Investigation Panel on Harassment that stated “Taking into account the judgment of the operations officer and the technical officer, the panel regretted that Respondents felt the need to denigrate Complainant’s technical capabilities in their written submissions to AFHL in the present case………. Complainant may have been slow at catching on to the proper line of reporting as established by the PCU, and Complainant may have wanted to change how the Government of Saudi Arabia dealt with its project trust funds, but this does not mean that there was anything wrong with his technical capabilities, technical judgment or English language skills, and these issues should not have been raised by PCU”. The Tribunal did not take into account also that I was nominated officially by the defendant organization in 2009 for the position of Director, Agriculture and Rural Development Department in Islamic Development Bank. In addition, the Tribunal did not take into account that the Headquarter Technical Officer tried to assist me for another position in the defendant organization. Furthermore, the Tribunal admitted “There is no evidence that the complainant’s work was ever evaluated or appraised during his tenure on the project”.

The Tribunal stated “[the decision not to extend my contract] was unduly influenced by a person in the Ministry of Agriculture”. This is big mistake. In fact, the decision was not influenced by a person in the Ministry of Agriculture but it was taken by a person in the Ministry of Agriculture as stated in the panel report. It seems here that the Tribunal tried to cover up the way this decision was taken.

On the other hand the Tribunal did not take into account the solid evidence and the appellant committee’s findings and recommendations on retaliation as the reason of not extending my contract. The Tribunal did not take into account the panel’s finding “The situation that the Complainant found in September 2007 clearly disturbed him and he did try to make changes”.

The Tribunal did not take into account the panel finding “The record does show that complainant began complaining about project finances almost immediately after he took up his position in September 2007. Amongst other things, he complained in an email to his technical officer that almost one-third of his budget was gone before he even started project activities”.

The Tribunal did not take into account the panel’s statement “The panel investigated staff of the FAO Inspector General’s Office who were familiar with the audit carried out on the 14 projects of a trust fund in Saudi Arabia, including Complainant’s project. The result of the audit was in fact that because the trust funds were Saudi funds and the projects were Saudi projects, FAO CTAs had been exercising limited control and a variety of payments of varying sorts were routinely being made out of project budgets”.

The Tribunal did not take into account the appeal committee’s conclusion “the fact that the audit (carried out approximately ten months before the appellant sent his letter to the Director, CSH) had revealed, according to the Panel Report, that “a variety of payment of varying sorts were routinely being made out of project budgets”, should have triggered an investigation of the appellant’s Allegations of Retaliation by the appropriate body”.

The Tribunal did not take into account the finding by the appeal committee “although the Whistleblower Protection Policy was not in place at the time of the facts, the appellant had nonetheless, under paragraph 19 of the standards of Conduct for the International Civil Services a duty “to report any breach of the Organization’s rules and regulations to a higher level official, whose responsibility it is to take appropriate action”, and, in case of such report. “a right to be protected against reprisals or sanctions”. [I] did report the alleged irregularities [I] found and which, according to the Panel Report, clearly disturbed [me]” to “[my] technical officer” [my] first month in the job; to the ADG/RNE approximately five months after the beginning of [my] appointment ……..”.

The Tribunal did not take into account the appeal committee’s conclusion “[the Appeal Committee] concluded that [Allegations of Retaliation] should be further investigated by OIG”.

The Tribunal did not take into account the appeal committee’s recommendation “The Committee added that the allegations made by [me] under heading”6.Statment of the Staff of the Inspector General’s Office is an evidence of the hostility of [Respondent #1] against me” of [my] appeal were related to the Allegations of Retaliation and would need to be examined as part of OIG’s investigation”.

The Tribunal did not take into account that I stated in my end of assignment report that was accepted by the Headquarter Technical Officer “The Major Problem: It seems that the JARC used to spend much of the project fund in the center operation and other activities that are not proposed in the project document. Trying to concentrate spending on the project activities was the most challenging task in the project. Competition between implementing the project and other activities may dramatically affect the performance of the project. FAO and Saudi Government should significantly interfere to fix this problem. Otherwise, the project could not make any development in the center or the region”.

The Tribunal did not take into account that the appeal committee noted “the absence of involvement of the RNE gave the impression that Riyadh office run in its own”.

The Tribunal did not take into account the evidence, supported with documents, that I submitted on retaliation. The first evidence was the 20% incentive that was given to the governmental officer from the project fund, during the period of taking his decision on extending my contract, without any role in the project. The second evidence was laundering governmental money for the same officer who rejected the inquiry of the defendant organization to extend my contract. I submitted official documents of the defendant organization and the bank to support my claim on the incident of money laundering.

The Tribunal admitted “[I] suffered harassment, which was both personal and institutional”, and “the complaint is well founded on the ground of harassment, which, compendiously was egregious and entitles the complainant to significant moral damages”. However, it covered up the motive for harassment because it was retaliation. This is the same motive for not extending my contract.